Jiwani v Jiwani @022 BCCA 451 refused to remove a lawyer for a potential conflict of interest stating that the role of the lawyer was not the basis of the court action, it was instead the enforceability of the marriage agreement turned on whether the appellant husband Mr. Jiwani truthfully disclosed his financial affairs to his wife.
The lawyer’s advice to the respondent in respect of the marriage agreement had not been put in issue.
In summary, the court has an inherent jurisdiction to remove a lawyer from the record who has a conflict of interest, including a lawyer who may be a witness in a case where they act as counsel (see Ontario Realty Corp. v. Gabriele & Sons Limited,  O.J. No. 4497 (Ont. S.C.J.) at para. 16 and MacDonald Estate v. Martin,  3 S.C.R. 1235 at para. 18).
The concern that arises when a lawyer testifies is there may be a conflict of interest between the client and the lawyer, and the administration of justice can be impaired by a conflict in the lawyer’s obligation of objectivity to the court, and their obligation as an advocate to the client.
The factors the court considers include:
(a) maintaining the high standard of the legal profession and the integrity of the justice system; and
(b) the right of a litigant to counsel of choice, which they should not be deprived of without good cause (Ontario Realty at para. 17, citing MacDonald Estate at para. 12)
The test to be applied is whether a fair minded reasonably informed member of the public would conclude that a proper administration of justice requires the removal of the lawyer (Ontario Realty at para. 20; Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 at para. 26).
The cases have recognized that when a litigant is deprived of a lawyer of their choice, a hardship may arise, which can only be justified to prevent a more serious injustice (see for example Urquhart v. Allen Estate,  O.J. No. 4816 (Ont. S.C.J.).
While certainty that a lawyer will be called as a witness is not required, the applicant must establish it is likely that counsel can provide material evidence: Ontario Realty at paras. 34-35. In Gichuru v. Purewal, 2017 BCCA 281 at para. 17, the Court of Appeal characterized a removal order as an extraordinary remedy, to be approached with great caution and rarely invoked.